Opinion
33987.
DECIDED MARCH 21, 1952. REHEARING DENIED APRIL 4, 1952.
Damages; from Albany City Court — Judge Jones. January 3, 1952.
J. Neely Peacock Jr., for plaintiff.
S. B. Lippitt, for defendant.
The evidence not demanding a verdict for the plaintiff in some amount, but authorizing a verdict for the defendant, and no error of law appearing from the special grounds of the motion for a new trial, the trial court did not err in overruling the plaintiff's motion for a new trial.
DECIDED MARCH 21, 1952 — REHEARING DENIED APRIL 4, 1952.
Roy L. Taylor, hereinafter called the plaintiff, brought suit in the City Court of Albany against the Atlantic Company, hereinafter called the defendant, in which he sought damages for certain personal injuries, alleged to have resulted from the negligence of the defendant. The petition as amended was laid in two counts. The defendant demurred generally and specially to the petition as amended, and excepted to the judgment overruling such demurrers. In Atlantic Co. v. Taylor, 80 Ga. App. 25, this court affirmed that judgment when this case was previously before this court. For a full and complete statement of the petition as amended, reference is made to the report of this case.
Thereupon, the case came up for trial before a jury in said city court, and resulted in a verdict for the plaintiff, and the defendant moved for a new trial on the general grounds and by amendment added several special grounds, in which it complained of certain excerpts from the charge of the court, and also assigned error on the refusal to charge certain written requests. In one ground, the defendant contended that the verdict, which was for $4750, was excessive. The trial judge overruled said motion for new trial as amended, and the defendant excepted to this judgment. This court reversed the judgment denying a new trial to the defendant, because the trial court failed to instruct the jury as to the manner of ascertaining the damages if they should find that the plaintiff was only temporarily injured or disabled; and this court also criticized another charge on an issue not made, and held as error a charge on diminished earning capacity, which was not supported by the evidence. See Atlantic Co. v. Taylor, 82 Ga. App. 361 ( 61 S.E.2d 204).
The case was tried a second time before a jury in said city court and resulted in a verdict for the defendant.
It appeared from the evidence: that the plaintiff's uncle, Ray Varnedoe, was an employee of the defendant, driving one of its ammonia-gas-tank trucks and engaged in transporting such gas from the defendant's storage tanks at its Brookwood plant near Atlanta to various places of delivery; that on the occasion involved this uncle requested the plaintiff, who at the time was unemployed, to accompany him on a trip to deliver some gas in Jacksonville, Florida; that the plaintiff did so and drove the truck a portion of the way to Jacksonville; that, after delivering this gas in Jacksonville, the plaintiff and his uncle came to the defendant's Brookwood plant near Atlanta, where the truck was again filled or charged with ammonia gas by the defendant's employees at this plant; that, during the time the truck was in Jacksonville and while it was at the Brookwood plant, the agents, employees, and officers of the defendant observed the plaintiff with his uncle and assisting him; that there was a rule of the defendant that no person was to ride in such truck except the employees authorized so to do; that no objection was made as to the plaintiff being in the truck with his uncle; that the defendant's manager at the Brookwood plant observed that the plaintiff was on this truck, and nothing was said; that, on the way from Atlanta to Albany, Georgia, with this truck filled with ammonia gas, the plaintiff drove the same from Jonesboro to Albany, arriving in Albany after 2 a. m.; that, as the truck entered the environs of Albany, the plaintiff heard a hissing noise, smelled the gas, and heard a roar; that he immediately stopped the truck and awakened his uncle, and both of them immediately got out of the truck; that the plaintiff was almost stifled by the fumes of the gas as he got out of the truck; that the gas was escaping and covered an area of some two blocks; and that the plaintiff and his uncle were overcome by the gas fumes, the uncle dying, and the plaintiff being injured.
The plaintiff moved for a new trial on the general grounds and by amendment added two certain special grounds, which are set out in the opinion following this statement of the facts. The trial court overruled the motion for a new trial of the plaintiff, as amended, and he excepted to such ruling and judgment.
1. Error is assigned in special ground 1 of the motion for a new trial on this excerpt from the charge: "If you find that the defendant in this case exercised ordinary care and prudence in the loading, and the charging and handling of these tanks, it would not be responsible under the law for any injuries that resulted thereafter. The law imposed upon them [the defendant] the duty to have exercised ordinary care and diligence. Whether the defendant did exercise ordinary care and diligence is a matter for this jury to determine by a preponderance of the evidence. . . On the other hand, as I have charged you before, it is contended by the defendant that these tanks were charged by the use of ordinary care and diligence, and that, having used ordinary care and diligence in the charging of the tanks, they are not responsible for the plaintiff's injuries. If you find that this defendant did exercise ordinary care and diligence in the charging of the tanks — in the charging, and loading, and hauling and handling of the tanks — and that they exploded, notwithstanding this fact, if it be a fact, then, of course, the defendant would not be liable in damage. Whether or not that is true, as contended by the defendant, or not true, is a matter of fact for this jury to determine by a preponderance of the evidence in the case. . . If you believe this plaintiff was a legally invited guest and that these tanks exploded and he was injured thereby, of course, he would be entitled to recover unless the defendant exercised ordinary care and diligence in the loading and charging of these ammonia gas tanks and the handling of the same." Error is assigned on the foregoing excerpt, (1) on the ground that there is no evidence upon which to base the same, and in that no such contentions were made by the defendant, either in its pleadings or by the evidence; (2) because it was argumentative in favor of the defendant and set forth contentions not made by it; (3) because the same was inapplicable; and (4) for the reason that the defendant introduced no evidence to show that it exercised ordinary care and diligence in the loading, charging, and handling of the ammonia tanks.
The foregoing charge was not error for any of the reasons assigned. In the opinion of this court in Atlantic Co. v. Taylor, 82 Ga. App. 361 (7), 370 ( 61 S.E.2d 204), it was ruled: "The court did not err in charging that the plaintiff would be entitled to recover if certain facts were shown, unless the defendant had exercised ordinary care in charging and handling the ammonia tanks" and that in count two of the petition the plaintiff sets out that the ammonia tanks were negligently loaded by the defendant's agents and servants in specified particulars. The burden was on the plaintiff to introduce evidence to the effect that the defendant was negligent in the manner alleged as to the loading and handling of these gas tanks, and it was not incumbent on the defendant to introduce evidence to show that it exercised ordinary care and diligence in such loading and handling of the tanks. If the plaintiff had shown that the defendant had been negligent in the manner alleged, then the defendant would have been called upon to introduce evidence that it had exercised ordinary care and diligence. Said charge was not error as being inapplicable, argumentative, and as setting forth contentions not made. Even though the plaintiff was in a place where he had a right to be and the defendant had knowledge thereof, and therefore owed to him the duty of exercising ordinary care and diligence in the loading and charging of the ammonia gas tanks, the burden was on the plaintiff to show that the defendant had not exercised such care and diligence. When the evidence showed that the gas tanks exploded and that gas fumes therefrom escaped and resulted in the plaintiff's injury, the burden was not thereby placed on the defendant to show that it had exercised ordinary care and diligence in loading, charging, and handling these gas tanks. The plaintiff does not show that his injury resulted from an accident of a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence, and the case does not fall within the doctrine laid down in Chenall v. Palmer Brick Co., 117 Ga. 106 ( 43 S.E. 443), and similar authorities.
2. From what is ruled above and from the previous rulings of this court in this case, the court did not err in charging the jury, as complained of in special ground 2: that, "If you find the defendant in this case exercised ordinary care and prudence in the loading, and the charging and handling of these tanks it would not be responsible under the law for any injuries that resulted thereafter. The law only imposed upon them the duty to have exercised ordinary care and diligence. Whether the defendant did exercise ordinary care and diligence is a matter for this jury to determine by a preponderance of the evidence. . . On the other hand, as I have charged you before, it is contended by the defendant that these tanks were charged by the use of ordinary care and diligence, and that having used ordinary care and diligence in the charging of the tanks, they are not responsible for the plaintiff's injuries. If you find that this defendant did exercise ordinary care and diligence in the charging of the tanks — in the charging, and loading, and hauling and handling of the tanks — and that they exploded, notwithstanding this fact, if it be a fact, then, of course, the defendant would not be liable in damage. Whether or not that is true, as contended by the defendant, or not true, is a matter of fact for this jury to determine by a preponderance of the evidence in the case. . . If you believe this plaintiff was a legally invited guest and that these tanks exploded and he was injured thereby, of course, he would be entitled to recover unless the defendant exercises ordinary care and diligence in the loading and charging of these ammonia gas tanks and the handling of the same." Neither is there error, as further complained of in this special ground, in the court's charge: that "it is incumbent upon the plaintiff to allege and prove that the defendant was negligent in the manner and way alleged, and the defendant may successfully defend by showing itself to be free from negligence, and it is not incumbent on the defendant to show, in such an event, what was the cause of the injury. I charge you that, in the case at bar, the defendant is only liable to the plaintiff in the event the defendant failed to exercise ordinary care and diligence. If, from the evidence in this case, the defendant exercised ordinary care and diligence, then the plaintiff cannot recover. The defendant in this case may show by the evidence that it was free from negligence by the defendant exercising that ordinary care and diligence, and, when the defendant does this, it is not incumbent upon it to go further and show what was the cause of the injury or damage. Unless the defendant's negligence, if any, was itself the cause of the injuries, the defendant's failure to show the cause of the injury would not create liability against the defendant. If the defendant was not negligent, and did exercise ordinary care and diligence, then in that event, the defendant would not be liable." The foregoing excerpts were not error, as contended by the plaintiff, in that there is evidence to show the defendant's freedom from negligence or to illustrate ordinary care and diligence upon its part, because the same were argumentative and set forth contentions not made by the defendant, and because the same were not applicable.
3. The evidence did not demand a verdict in the plaintiff's favor in some amount, as urged by the plaintiff. While it is true that this court ruled that the petition as amended set forth a cause of action against the defendant, which, if proven, would authorize him to recover of the defendant (see Atlantic Co. v. Taylor, 80 Ga. App. 25, 54 S.E.2d 910), this was not a case where all that the plaintiff had to show was that the gas tanks had exploded and that he was injured from the gas fumes escaping therefrom, and the burden of disproving negligence in the premises was on the defendant, as in Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 869 ( 50 S.E.2d 136). The plaintiff charged certain acts of negligence on the part of the defendant as to loading, charging, and handling the tanks of ammonia gas, and the defendant denied such negligence and set up that the plaintiff had assumed the risk and that his injury, if any, resulted from an accident, for which it was not to blame. The burden was on the plaintiff to show that the defendant was negligent in some one or more of the particulars alleged. The jury were authorized to find under the evidence that the defendant was not negligent as contended. There is no merit in the contention now urged that a finding for the plaintiff in some amount was demanded.
Judgment affirmed. Townsend and Carlisle JJ., concur.